On termination of the retail sale agreement and refund of the amount paid
Jurisdiction.
A claim for termination of the retail sale agreement and refund of the amount paid is filed at the location of the seller-organization, and if the seller is an individual entrepreneur - at his place of residence (Article 29 of the CPC). If a claim against an organization arises from the activities of its branch or representative office, it may be brought to court at the location of its branch or representative office (part three of Article 30 of the CPC). Such a claim may be filed at the plaintiff's choice in court at the place of residence of the plaintiff; the conclusion or execution of the contract (part nine of Article 30 of the CPC). Claims are considered by district (city) courts.
Definition of the legal relations of the parties and the law to be followed.
A distinctive feature of this type of contract is that the seller is a person engaged in business activities for the sale of goods. The contract is public, meaning the seller is obligated to sell the product to anyone who contacts him. The price of the product, as well as other conditions, are set to be the same for all consumers.
Persons involved in the case.
The plaintiff
– a citizen or an organization that has purchased goods intended for non-entrepreneurial use.
The defendant
The seller is a legal entity or an individual entrepreneur.
Facts to be established and proved. Evidence and proof.
Based on the presented claim – termination of the retail sale agreement and recovery of the amount paid - in accordance with Article 402 of the Civil Code, the court should verify compliance with the pre–trial procedure for termination of the agreement.
To resolve the dispute correctly, it is necessary to establish the date and place of conclusion of the contract. As a rule, a retail purchase and sale agreement is concluded verbally and executed upon its completion. In this regard, the evidence of the transaction is: a cash or commodity receipt, another document confirming payment for the goods, forms or other standard forms to which the buyer joins, witness statements.
The subject of the agreement
A retail sale is a product that is usually intended for personal, family, home, or other use unrelated to business activities. The court should determine whether the parties have determined the essential terms of the contract, which include the terms of the name, quantity, assortment (type, model, size, color, and other attributes) of the goods, the price and payment procedure, the terms of the contract, and the time of delivery of the goods. Whether the accessories of the goods have been handed over to the buyer, as well as documents certifying the completeness and safety of the goods, operating instructions, warranty cards, certificates.
When checking the grounds of a claim and arguments regarding the quality of goods, it should be borne in mind that quality can be established by national standards, other regulatory documents on standardization, product samples, a certificate, and a preliminary pre-sale inspection. If legislation or a contract establishes mandatory requirements for quality control of goods, quality control must be carried out in accordance with the instructions contained therein. If the conditions for checking the quality of the goods are not provided for by law or contract, then the quality control of the goods must be carried out in accordance with business practices or other commonly applied verification conditions. Checking the quality of the goods is the buyer's responsibility, but legislation or a contract may establish the seller's obligation to check the quality of the goods, in which case it is the seller who must provide evidence of the quality control of the goods.
An expiration date may be set for a certain category of goods (food, hygiene items, and others). The warranty period is defined as the period of time (in days, months, years) or operating time, set in hours, trigger cycles, kilometers, or other similar indicators, during which the seller guarantees the quality of the product, provided it is properly used and stored. The warranty period is confirmed by the terms of the contract, warranty card or other document.
The evidence of improper product quality may be inspection, examination, expert opinion and other evidence. The quality of the goods should be attributed to the essential terms of the contract, therefore, the improper quality of the goods, if it has not been agreed upon by the seller, is the basis for the termination of the retail sale agreement (refusal to fulfill the contract) and the refund of the amount of money paid for the goods.
List of documents attached to the statement of claim
In accordance with the requirements of Article 149 of the CPC, including: documents confirming the circumstances on which the plaintiff bases his claims:
- a document confirming the payment of the goods: a cash or commodity receipt or other document;
- evidence of improper product quality;
- documents on compliance with the pre-trial procedure for considering a dispute on termination of the contract.
Note. Claims brought to court by public associations of consumers, associations (unions) in the interests of consumers are not subject to state duty. When a citizen submits a claim in a dispute over consumer rights protection, an application for postponement of payment of state duty is submitted (part three of Article 106 of the CPC). The court issues a ruling on this issue.
Laws to be applied when considering and resolving a case, depending on the subject matter and grounds of the claim (see comment)
The Constitution.
GK.
The Code "On Taxes and Other Mandatory Payments to the Budget" (Chapter 90. The procedure for using cash registers).
The Business Code.
Laws:
- dated May 4, 2010 No. 274-IV "On Consumer Rights Protection";
- dated April 12, 2004 No. 544 "On Regulation of trading activities";
- dated July 21, 2007 No. 301 "On Food safety";
- dated November 27, 2015 No. 423-V "On the production of organic products";
dated June 7, 2000 No. 53-II "On ensuring the uniformity of measurements";
- dated July 26, 2016 No. 11-VI "On Payments and Payment systems";
- dated November 9, 2004, No. 603 "On Technical Regulation";
- dated May 31, 1996, No. 3 "On Public Associations".
Government Decree No. 918 of September 14, 2005 "On Approval of the Rules of Retail Trade outside Retail locations through Network Marketing, public distributors, mail-order sales and other means."
Orders of the Minister of National Economy:
- dated March 19, 2015 No. 230 "On approval of Sanitary Rules "Sanitary and epidemiological requirements for wholesale and retail trade in food products";
- dated October 3, 2014 No. 43 "On Approval of the Regulations on the Committee for Consumer Protection of the Ministry of National Economy of the Republic of Kazakhstan"
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